INNAIMO v GOVERNMENT INSURANCE OFFICE OF SOUTH WALES [1995] NSWCA 207

INNAIMO v GOVERNMENT INSURANCE OFFICE OF SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA and CLARKE JA

7 March 1995

[1995] NSWCA 207

CHALLENGE TO TRIAL JUDGE'S ADVERSE FINDING ON CREDIBILITY

Clarke JA. This is an appeal from a judgment of Judge Craigie in which he directed entry of judgment in favour of the plaintiff, who is the present appellant, in the sum of $10,945.

The appellant's claim arose out of a motor vehicle accident which occurred on 4 December 1986. In the court below the appellant contended that he had suffered from continued serious back problems as a result of that accident and he sought a large award of compensation. His Honour did not accept the appellant as a witness of credit or a sound historian and in addition he formed an adverse view of Dr Robson who gave evidence supporting the appellant's case. Consequently he preferred the evidence contained in the reports of three doctors who had seen the appellant on behalf of the respondent and did not make the large award of compensation which the appellant sought.

The primary challenge in the appeal concerns the judge's rejection of Dr Robson's evidence. It was put that his Honour formed an adverse view of the doctor's conduct for reasons which were not substantial and it was also said that such a view could only have been formed as a result of the trial judge's failure to understand the significance, from an evidentiary point of view, of a myelogram report dated 23 July 1993 and a magnetic resonance scan report dated somewhat later.

In order to understand the submissions it is necessary to say something shortly about the time following the accident. On the day after the accident the appellant attended Queanbeyan Hospital out-patients. That was his first attendance at which he sought medical assistance. The hospital report stated as follows: